Submitted January 26; convictions on Counts 2 through 8 reversed and remanded, remanded for resentencing, otherwise affirmed February 18; petition for review denied July 8, 2021 (368 Or 347)

STATE OF OREGON, Plaintiff-Respondent, v. ISRAEL MARCEL MOORE, Defendant-Appellant.

Washington County Circuit Court 18CR39673; A171043 481 P3d 1034

Danielle J. Hunsaker, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

PER CURIAM Convictions on Counts 2 through 8 reversed and remanded; remanded for resentencing; otherwise affirmed.

Cite as 309 Or App 416 (2021) 417 PER CURIAM Defendant was found guilty by unanimous jury ver- dict on one count of first-degree unlawful sexual penetration, ORS 163.411 (Count 1), and by nonunanimous jury verdicts on seven counts of first-degree sexual abuse, ORS 163.427 (Counts 2 through 8). The trial court merged four of the sex- ual abuse verdicts into the remaining three, resulting in one conviction for first-degree unlawful sexual penetration and three convictions for first-degree sexual abuse. Defendant argues on appeal that the court erred in declining to give a requested instruction on less-satisfactory evidence at trial and in imposing restitution, and that the court plainly erred in instructing the jury it need not reach unanimous ver- dicts and in accepting nonunanimous verdicts on the sex- ual abuse counts. We reject the claimed error regarding the less-satisfactory evidence instruction. The state concedes that defendant’s convictions based on nonunanimous ver- dicts must be reversed in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). We agree and accept the concession, and exercise discretion to correct the errors for the reasons set forth in State v. Ulery, 366 Or 500, 464 P3d 1123 (2020). Defendant also argues that his convic- tion by unanimous verdict on Count 1 should be reversed based on the erroneous nonunanimous verdict instruction.

We reject that argument for the reasons set forth in State v. Flores Ramos, 367 Or 292, 478 P3d 515 (2020), and State v. Kincheloe, 367 Or 335, 478 P3d 507 (2020), in which the Supreme Court concluded that the erroneous nonunanimous jury instructions were harmless with respect to unanimous verdicts. Although our disposition obviates the need for us to address the question of restitution at this time, we note that the state concedes that the restitution award also was erroneous under State v. White, 299 Or App 165, 167-68, 449 P3d 924 (2019).

Convictions on Counts 2 through 8 reversed and remanded; remanded for resentencing; otherwise affirmed.